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Blog comments do not reflect the views or opinions of the Author or Ancel Glink. Some of the content may be considered attorney advertising material under the applicable rules of certain states. Prior results do not guarantee a similar outcome. Please read our full disclaimer

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Wednesday, October 25, 2017

In
a recent, non-binding request for review, the PAC found that law firms that represent units of local government are
performing a “governmental function” such that the law firm’s records are
considered “public records” under FOIA. 2017 PAC 43089

A requester had filed a
FOIA request with a school district, seeking all records mentioning and
pertaining to an attorney and her law firm. The district responded, but withheld certain records held by its attorneys under
Section 7(2) of FOIA, arguing that the records were not “public records.”
The PAC disagreed with the district, finding that the requested records are “public records”
if they directly related to a government function that the law firm has
contracted to perform for the district. Although the district argued that the law firm was not performing a governmental function, the PAC rejected that argument, finding
that the law firm’s litigation services support the district’s education
services. As a result, the PAC ordered the school district to obtain any responsive
records from the law firm and disclose them to the requester.

The
PAC’s opinion does not address any exemptions that might apply to this
request, such as attorney-client privilege. Presumably, the district can still assert those exemptions before turning over any responsive records as ordered by the PAC.

Although this is merely an advisory opinion and binding on any other public bodies, it is a good reminder that public bodies should list all possible arguments and
exemptions in their FOIA response letters, as well as their responses for requests for review to the
PAC, because we never know when the PAC might try to make "new law" in one of its opinions.